# Mohan Singh and others v. Nirmala Soni and others

- **Citation:** (2002) 3 ILRA 739
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-03
- **Case number:** Civil Revision No. 407 of 2002
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-singh-and-others-v-nirmala-soni-and-others-39953
- **Pages:** 3

## Text

http://www.allahabadhighcourt.nic.in
3 All] Mohan Singh and others V. Nirmala Soni and others
739
an order granting the application may be
objected to at once by an appeal from the
order granting the application or in an
appeal from the decree or order finally
passed or made in the suit."

6. According to this clause,
therefore, the Second appeal can be filed
against the decree and the order granting
review can also be challenged in this said
appeal.

7. Considering the above provisions,
I am of the view that since the first appeal
has been allowed in pursuance of the
decision of review application, therefore,
the second appeal is maintainable.

List the appeal in the next cause list
for hearing on admission.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.10.2002.

BEFORE
THE HON'BEL B. K. RATHI, J.

Civil Revision No. 407 of 2002

Ghaziabad Development Authority

 ...Revisionist
Verses
Asha Pusp Vihar Awas Samiti

 ...Respondents

Counsel for the Appellants:
Sri Ajay Kumar Misra

Counsel for the Respondents:
Sri Tarun Agarwala

Code of Civil Procedure section 115-
Practice and procedure - preliminary
issue
regarding
limitation
in
filing
revision raised despite of direction the
Revisional Court decided matter finally
whether is the final order can be held
bad? 'No'.

Held-Para 9

There does not appear to be any reason
that when the hearing on the entire
matter has been concluded, some issue
should be decided as preliminary issue.
The stage of deciding an issue as
preliminary issue has already passed in
the
present
case.
Therefore,
the
revisionist cannot get any advantage of
the judgment of the Division Bench of
this Court in the present case.

(Delivered by Hon'ble B.K. Rathi, J.)

1. L.A.R. No. 808 of 1998 is
pending in the court of XI th Addl..
District Judge, Ghaziabad. The revisionist
who is opposite party in the reference
moved an application to decide the issue
of
limitation
and
regarding
maintainability of the reference and
whether the reference is barred by Section
137 of the Indian Limitation Act as
preliminary issue. The trial court has
refused to decide this issue as preliminary
issue. Aggrieved by it, the present
revision has been preferred.

2. I have heard Sri A.K. Mishra,
learned counsel for the revisionist and Sri
tarun Agarwala, learned counsel for the
opposite party.

3. It has been argued by Sri A.K.
Mishra that the award was given by the
collector on 27.7.1991. Reference in the
court was made under section 18 of the
Act in the yea, 1998 i.e. after seven years,
that, therefore, clearly the reference is
barred by time and is not maintainable. It
is further contended that the request for
reference under section 18 can be made
http://www.allahabadhighcourt.nic.in
740 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
by the claimant within six weeks, but it
was not made within six weeks.

4. It is further contended that
regarding
this
reference
and
many
connected references similar question
arose and, therefore, writ petition no.3760
of 2002 was filed in the High Court which
has been decided on 5.3.2002 by
judgment Annexure-5 to the revision that
Division bench has directed that "we,
therefore, feel persuaded to the view that
in
case
any
objection
regarding
competence
or
maintainability
of
reference is preferred on behalf of the
petitioners before the court hearing the
reference, the court will decide such
objection as a preliminary issue."

5. On the basis of this, it has been
argued that the reference court has erred
in rejecting the direction of the Division
Bench.

6. It appears from the judgment of
the
revisional
court
and from the
arguments advanced by the learned
counsel for the opposite party that in this
case the evidence of parites has concluded
and the case was fixed for hearing
arguments. At the stage of argument, the
revisionist moved an application 40-C for
amendment
maintainability
that
application for amendment was allowed
and an issue regarding it was framed.
Thereafter, the arguments were heard and
the case was reserved for judgment.
Thereafter the application was moved by
the revisionist 51-C with the copy of the
above writ petition, with the request that it
may be decided as preliminary issue.

7. The trial court has also observed
that the arguments regarding entire
reference has been heard thrice and it has
been fixed for final judgment.

8. Order XIV Rule 2 C.P.C. does not
make it mandatory to decide an issue of
law as preliminary issue. However in this
case, there is direction of the Division
Bench. Fro m the perusal of the order of
the Division Bench, it does not appear
that it was brought to the notice of the
court that entire evidence and the hearing
has already been concluded. Therefore, a
general direction has been issued by the
Division Bench that preliminary objection
if raised regarding maintainability, it shall
be decided as preliminary issue.

9. There does not appear to be any
reason that when the hearing on the entire
matter has been concluded, some issue
should be decided as preliminary issue.
The stage of deciding an issue as
preliminary issue has already passed in
the present case. Therefore, the revisionist
con not get any advantage of the
judgment of the Division Bench of this
Court in the present case.

10. I do not find any ground to
interfere in the impugned order.

The revision fails and is here by
dismissed.
---------
http://www.allahabadhighcourt.nic.in
3 All] Iqbal Husain V. District Judge, Moradabad and others
741
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2002.

BEFORE
THE HON'BLE V. M. SAHAI, J.

Civil Misc. Stay Extension Application
80063 of 2002
In
Civil Misc. Writ Petition No. 22025 of 2001

Iqbal Husain

...Petitioner
Verses
District Judge, Moradabad and others

 ...Respondents

Counsel for the Appellants:
Sri Vikram gulati
Sri A.K. Rai
Sri S.N. Singh

Counsel for the Respondents:
Sri Madhur Prakash
S.C.

High
Court
Rules-Rule
13
and
14
Practice and procedure Time Bound Stay
order whether the extension application
can be decided by the same Bench who
passed the stay order or by any judge - if
the order passed after hearing to both
parties- The essential order be passed by
the same Judge if available- in otherwise
case shall not be treated tied up can be
entertained by any judge sitting in
appropriate Bench.

Held- Para 7

Already
held
that
in
such
cases
application for extension of stay if not
maintainable. But fresh application for
stay can be filed. The question is
whether such application can be decided
by any judge or it can be listed only
before the judge who gr4anted time
bound stay order. For this purpose the
two rules are to be so read as to operate
harmoniously. In my opinion, in all such
cases where interim order is granted
after hearing, may be standing counsel
only, it would not be an ex party order
and if the interim order is time bound
etc. it ceases to be operative for any of
the reasons then the remedy of the
petitioner would be to move fresh
application for stay and it whould be
listed before the same judge who had
passed the interim order unless he is not
available.
1994 (i) ALR 32
1998 (c) AIRC-526
1998 (c) ESC-367
2001(f) UPLBEC -693
1992 (2) SCC-644

(Delivered by Hon'ble V.M. Sahai.J)

1. The short questions that arise for
consideration in this application are, what
is the effect of time bound stay order?
Whether a time bound stay order can be
extended after its expiry ?

2. The brief facts are that the
predecessor of the respondents filed a suit
for arrears of rent and ejectment against
Rijwan, which was decreed ex parte on
28.4.1993. Revision filed by Rijwan was
also dismissed on 24.2.1997. In execution
the petitioner filed objection under Order
XXI Rule 97, 98 and 101 read with
section 151 C.P.C. The objection was
allowed on 28.5.2000 and execution was
rejected
by
the
trial
court.
The
respondents filed an appeal and revision,
which were allowed by a common order
on 10.5.2001 the petitioner challenged the
order dated 10.5.2001 by filing the instant
writ petition. This court on 8.6.2001
granted interim order and stayed the
operation of the impugned judgment till
the next date of listing and directed the
matter to be listed in the third week of
July 2001. On 18.7.2001 this court
extended the stay order passed on